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Saturday, December 01, 2012

'Heated and hyperbolic,' 'arrogant and extreme': Prosecutorial rhetoric on professional regulation

In the wake of the Michael Morton exoneration and the pending court of inquiry related to alleged prosecutor misconduct in his case, Texas has witnessed calls for greater regulation of prosecutors that will likely lead to concrete legislative proposals in the coming year. So, in anticipation of that debate, I was interested to see an academic publication from Bruce Green at Fordham University law school focused on prosecutor attitudes toward professional regulation. The article opened thusly:

Much is expected of prosecutors. The bench and bar take the view that prosecutors are “ministers of justice” with a responsibility to uphold higher professional standards than other lawyers, and prosecutors generally agree. But not so much is required of them. Few professional conduct provisions specifically target their work, and those provisions are mostly undemanding. Courts often interpret the generally applicable rules of professional conduct as less restrictively applied to prosecutors than to other lawyers. When prosecutors engage in questionable conduct that does implicate professional conduct rules, professional discipline rarely follows. For every case in which a prosecutor is publicly sanctioned for egregious misconduct, there are many more in which prosecutors’ questionable conduct goes unpunished. Although the U.S. Supreme Court, in recognizing prosecutorial immunity, assumed that prosecutors are adequately policed by regulators of the bar, in reality, there is no reason for prosecutors to fear professional regulation: in making, interpreting, and enforcing rules of professional conduct, the legal profession’s regulators are highly deferential to them.

Even so, prosecutors often express mistrust of professional regulators, their rules, and their processes. Twenty years ago, prosecutors’ mistrust may have been more understandable. Prosecutors perceived, probably unfairly, that the organized bar had been captured by defense lawyers who were seeking to use professional regulation to impose limits on criminal investigative authority that the law did not otherwise recognize. Today, this perception is even further from the reality, but it has persisted in the rhetoric prosecutors employ in discourse regarding their professional conduct, even in contexts such as rule-making where prosecutors are not representing one side in an adversary process but purport to express personal views. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses to perceived over-regulation two decades ago, then offering three recent illustrations, and finally exploring the significance of prosecutors’ rhetorical challenges to external regulatory efforts. It suggests that the rhetoric reflects a departure from prosecutors’ professional obligation to act in the public interest and that the rhetoric may have various negative repercussions, including a likely negative impact on the culture of prosecutors’ offices.

Prof. Green pointed out that not all prosecutors engage in over-the-top rhetoric in public policy debates, but in analyzing the arguments of those who do, he presaged the likely response to reform proposals next year aimed at prosecutors in Texas. Examining three high-profile case studies, Green found that "prosecutors’ rhetoric was sometimes heated and hyperbolic," not to mention "arrogant and extreme." Indeed, "The anti-regulatory rhetoric in the three examples described in Part II was largely inflammatory and superficial; it was not predicated on well-developed arguments, but bordered on sloganeering." Moreover, "Besides being facile and inchoate, prosecutors’ arguments against professional regulation were also indiscriminate and overbroad."

Prosecutors frequently worry that their own reputations will be unfairly sullied through misconduct allegations, noted Green. "Yet prosecutors often show little concern for the reputations of individuals whom they accuse of criminal conduct in public filings, press conferences, or elsewhere. Even when mistaken, they rarely take steps to repair the reputations of those who are acquitted or against whom charges are not filed. Likewise, prosecutors claim to worry that the risk of discipline will chill them in performing their professional tasks, but discredit complaints about the chilling effect of aggressive criminal prosecutions on others’ legitimate professional activities."

The article concluded that, "To the extent that prosecutors’ inflammatory anti-regulation rhetoric reflects genuine belief, it seems likely that the belief is atavistic, vestigial, unexamined, and shaped by the continued utility of exaggerated rhetoric as an advocacy tool." In other words, prosecutors may or may not believe their own bullshit (there are moments when it seems unlikely), but they employ such tactics because they work. Prof. Green's analysis provides a context for evaluating such Chicken Little rhetoric, which is a good thing, since in the near future we're certain to be hearing more of it.

Or perhaps they're skeptical of the good faith of those proposing increased oversight.

When you talk about looking into occasions "when prosecutors engage in questionable conduct that does implicate professional conduct rules", I suspect you see something different than most prosecutors see. Taking an oath to see that justice is done means that every resolution of every case implicates questions of whether you fulfilled your ethical obligations. The result of this is that a very large portion of appellate briefs (maybe 1/4 or 1/3) accuses the prosecutor of some sort of ethical violation, and pretty much every habeas writ accuses the prosecutor of ethical violations. Routine errors by prosecutors (or, more often, things that defense lawyers will argue are errors but are not) result in accusations of prosecutorial misconduct. If a witness gives a non-responsive answer that harms the defendant, there is always an accusation of prosecutorial misconduct. Most everyone who goes to trial and gets convicted thinks they got railroaded, and accusing the prosecutor of being a bad guy is among the easiest ways of explaining how it happened.

Prosecutors don't really like baseless accusations of impropriety, but most of them have gotten used to it, and the judges in criminal courts have gotten used to it as well. Hell, I think most defense lawyers have gotten used to it, and I suspect that in a sizable portion of the allegations, the defense lawyer doesn't actually believe there was misconduct, but uses the accusation as a rhetorical tool.

Such accusations are uncommon among civil lawyers. But the state bar is dominated by civil lawyers; to the degree criminal lawyers are noticed by the bar, it’s all defense lawyers, not prosecutors. I think prosecutors are correct to be very, very afraid of subjecting themselves to discipline at the hands of an organization that is controlled by 1) people who are not used to the huge number of baseless accusations against prosecutors and 2) people who are making those baseless accusations against prosecutors.

I’m not saying that there should be no oversight; this is a complex question that most prosecutors take seriously. But prosecutors are people too; they've paid huge sums to go to law school and are making middle class incomes while working fairly stressful jobs; all things being equal, they’d like to continue doing what they’re doing. The vast majority of them are good guys who take their obligations seriously. Before accusing them of acting irrationally in opposing oversight, you need to take account of the ethical imbalance they face every day. If we’re to increase oversight on them, we need to start punishing those who make baseless accusations. We can’t have strict oversight of prosecutors so long as defense lawyers can toss around the phrase “prosecutorial misconduct” with impunity.

Anonymous 5:20, how many prosecutors have spent decades of their lives in prison because of "baseless accusations." Quite a significant number of people have spent significant portions of their lives in prison because of prosecutorial misconduct. No, I'm not talking about "errors." Prosecutors always try to say that what has been called prosecutorial misconduct are simply "errors." But, when we say "prosecutorial misconduct" we are talking about things like intentionally withholding evidence, coercing witnesses to lie, making undisclosed deals with jailhouse snitches, etc. So, no, when we talk about "prosecutorial misconduct" we are not talking about "errors." We are talking about serious and intentional acts that have significant consequences. If you don't want the bar to police prosecutors, what solution do you propose? Or, do you just want everyone to bury their heads in the sand and deny tha their is a problem?

Grits, aside from more active or vigorous enforcement of Conduct Rule 3.09 by the State Bar, what greater degree of regulation are you envisioning? A prosecutor is already obliged to see that the defendant is accorded procedural justice, that the defendant's guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor. And he is already subject to sanctions extending all the way to disbarment for failing in this regard. Lawyers of all ilks (and therefore the legislature) generally favor self-regulation of the profession. I am betting it will stay that way.

5:20 said, "If we’re to increase oversight on them, we need to start punishing those who make baseless accusations."

From the article: "prosecutors often show little concern for the reputations of individuals whom they accuse of criminal conduct in public filings, press conferences, or elsewhere. Even when mistaken, they rarely take steps to repair the reputations of those who are acquitted or against whom charges are not filed."

Prosecutors always try to say that what has been called prosecutorial misconduct are simply "errors." But, when we say "prosecutorial misconduct" we are talking about things like intentionally withholding evidence, coercing witnesses to lie, making undisclosed deals with jailhouse snitches, etc. So, no, when we talk about "prosecutorial misconduct" we are not talking about "errors."

That's my point. We'd like to think that charges of "prosecutorial misconduct" involve unethical behavior, but that's not the case. I'm telling you, defense lawyers throw around the phrase "prosecutorial misconduct" like it's candy at a Halloween parade.

Before you can start vigorously enforcing prosecutorial misconduct, you've got to restrict charges of "prosecutorial misconduct" to actual instances of prosecutorial misconduct. In the present environment, stricter enforcement would result in nothing more than defense lawyers driving prosecutors out of the business over baseless accusations.

Unless and until there is some disincentive for defense lawyers to scream "prosecutorial misconduct" every time they lose — right now there's every reason in the world for them to make the accusation; it pleases the client and it's a rhetorical point to use with appellate courts, but there's no punishment for the lawyer if he loses the claim — you cannot have strict enforcement.

Or I suppose we could turn this blog into a place where we just scream Bloody Mary every time the State puts a criminal in prison. Because if we're to use the defense bar's defininition of "prosecutorial misconduct" — which you seem to want to do — putting criminals in prison should result in prosecutors being disbarred.

Hyperbolic, incendiary, over-blown rhetoric is the stock in trade of most prosecutors...regardless of whether they're fending misconduct charges or pressing criminal cases in courts. The depressing fact officials in positions to curb, temper or punish those who indulge in it typically "defer" or wink and let it pass is not appalling but dangerous in a free society.

But the more significant problem is the power prosecutors have to raise the stakes by ratcheting up charges until defendants cry uncle. Putting prosecutors in charge of sentencing as well as prosecuting was the death blow to any chance of citizens getting a fair shake once they've been accused of crimes.

The regulatory rhetoric issue doesn't seem to pertain much to the 96 percent of federal cases and roughly 75 percent of state case in which prosecutors leverage stacked charges/sentencing guidelines to coerce plea agreements.

I am perplexed by any concerns and the obvious misconception expressed in these posts which assume that the State BAR will do anything other than what they have a history of doing for years. NOTHING!!!! It has been obvious for years that the State Bar does not provide true oversite for attorneys or prosecutors and they are largely reguarded as an entity that provides a forum to complain but little else....essentially they are political and support theim membership unless they are forced to act because of extreme public attention to a grevious problem is present. I believe that they only act on about 3% of all complains that are filed and most of those actions are inadequate. OPEN your eyes folks...the State Bar needs to be overhauled, too. It will never change unless we demand it. As for prosecutors suffering the same fear and possible consequences to themselves for accusation of impropriety that they carelessly inflicted to many others over the years - it is time for the balance of justice to be applied to them. I have watched for years the outrageous attitudes and power of many of these folks -they assumed that they were above reproach - and the communities they represent were just as guilty in my opinion....they expressed pride in such attitudes and jumped on the bandwagon to support these folks - still happening in Georgetown with the allowance of Anderson still on the bench...seems moral justice is for others.

Those left-wing professors at Fordham can get a bit arrogant themselves. They're up there in NYC on the upper west side where the air gets pretty thin--rarefied they call it. I would rather trust the legal opinion of the dancers at Lincoln Center next door.

The best solution is to scale back the immunity of prosecutors from "absolute" to "qualified." A prosecutor who simply makes unintentional errors has nothing to fear from this. Under qualified immunity, to successfully sue a prosecutor a plaintiff would have to prove that the prosecutor intentionally violated a clearly established constitutional right. So, the only reason a prosecutor should have a problem with this proposal is that they are intentionally violating clearly established consitutional rights. That is not simply an "error." Those who simply commit "errors" have nothing to fear from qualified immunity. But, the real truth is that there is a number (hopefully a small minority but I'm not sure) of prosecutors who love the power they have to manipulate the system and will bristle at any attempt to reign in the abuses of power.

ANON 7:28 said, "It will never change unless we demand it." It will not change if those in power can help it. The needs to continue to manipulate tens if not hundreds times in wages what private-sector citizens can earn allows this ruling class to play their games. ANON 10:08 said, "Civilian COMMON SENSE oversight is what is required." Those in power fought Jail For Judges and every attempt to reign in anyone. And so it goes. If all the illicit communitarian committees being former, the kind we need that will never exist is a civilian panel to judge the rich lawyers. Imagine if YOUR profession had been outsourced to Asia, and you could be robbed by others, here at home.

"Or I suppose we could turn this blog into a place where we just scream Bloody Mary every time the State puts a criminal in prison."

The things we are talking about - intentionally withholding exculpatory evidence, knowingly allowing or even coercing witnesses to lie, presenting evidence known to be false, etc.- are criminal acts and the prosecutors who do these things are criminals. So, it seems that you are the one advocating for criminals. The only things that separates the prosecutors who engage in intentional misconduct from the "criminals" are a law degree, a suit, and absolute immunity. Who would have thought so many prosecutors would be so soft on crime?

..."in reality, there is no reason for prosecutors to fear professional regulation: in making, interpreting, and enforcing rules of professional conduct, the legal profession’s regulators are highly deferential to them."

In Texas, what percentage of judges were previously prosecutors?In Texas, what percentage of District Attorneys were Defense Lawyers?If it is a high percentage then it would help explain the general apathy towards prosecutor conduct. Who in their right mind is going to follow up on a complaint that could easily turn into a "political hot potato?"

Or maybe, statistically speaking, there just isn't that much prosecutor misconduct. Maybe--just maybe--the overwhelming majority of people charged with a criminal offense are really guilty. Perhaps law enforcement in Texas is really doing a pretty darn good job of getting it right. Now I'm sure that most of the criminals who frequently comment on this blog will disagree. Lord knows, the prisons are full of innocents. If you don't believe it just ask them! But, as far as I can tell, the real "heated and hyperbolic" rhetoric in this discussion seems to be coming from those who just want to make it tougher to prosecute the guilty!

8:35, these strings become incredibly boring when you confuse snark with insight and repetition with persuasion. Anonymously blasting phony straw men does nothing to counter the well-documented trends cited in the article by Prof. Green, who incidentally is a recent chair of the American Bar Association's Criminal Justice section. He offered proof for what he said and signed his name to it. Why don't you argue against what he wrote instead of this caricature you carry around in your head that you seem to apply to everyone who disagrees with you? I'd write anonymously too if that weak tripe was all I had to offer.

Hey Grits, while your reply said it all, if I was to add a reply, it would be as follows -

Despite the MoFo dropping goofy off the wall comment bombs every damn day and moving on to the next target, for the record, judicial history recorded and reveals the blatant police, prosecutorial & Judge's criminal conduct taking place in 1984 & beyond. Three prime examples of documented criminal conduct; Mr. John W. Clinton, Mr. Casey J. O'Brien, Judge Hearn 263rd. (*Others may add their examples, we'll have to wait & see.)

And, hell no, no one believes the prisons are full of innocents, but you can bet your last Troll-Buck that a shit-load are. *Challenge - If you can prove that the three examples are 'not' guilty of criminal conduct associated with my name and at least one other victim of the system, I'll eat the 10 page HPD Incident Report live on SKYPE from the top of a construction crane and troll with you until we puke.

8:35 on 12:03 said " Lord knows, the prisons are full of innocents. If you don't believe it just ask them!"So this automatically makes everyone charged with a crime guilty before being proven innocent?Lord I hope you aren't a prosecutor! This type of generalization is indicative of how many cases are viewed by way too many prosecutors. This leads to manipulating information and strong arming tactics to validate such a generalization rather than a transparent examination of all the information and facts of the case.What no one is pointing out is that this is only one part of the power abused by prosecutors. What about all the blatant offenses committed where the offender is a "crony" or public figure and prosecutors dismiss the case? How many open meetings act offenses do prosecutors refuse to pursue in their own jurisdiction?

Yes, more oversight is needed and qualified immunity should replace absolute immunity.

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